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EXHIBIT 1.1
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ECHOSTAR DBS CORPORATION
$1,625,000,000
9 3/8% SENIOR NOTES DUE 2009
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FIRST SUPPLEMENTAL INDENTURE
Dated as of October 25, 2000
to
INDENTURE
Dated as of January 25, 1999
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U.S. Bank Trust National Association
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Trustee
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FIRST SUPPLEMENTAL INDENTURE
First Supplemental Indenture, dated as of October 25, 2000, among
EchoStar DBS Corporation, a Colorado corporation (the "Company"), the Guarantors
and U.S. Bank Trust National Association, as trustee (the "Trustee").
RECITALS
WHEREAS, the Company, the Guarantors and the Trustee executed an
Indenture, dated as of January 25, 1999 (the "Indenture"), providing for the
issuance of $1,625,000,000 aggregate principal amount of the Company's 93/8%
Senior Notes due 2009 (the "Notes");
WHEREAS, on September 25, 2000, the Company's parent corporation,
EchoStar Broadband Corporation ("EBC"), closed on the sale of $1 billion of
103/8% Senior Notes due 2007 (the "EBC Notes");
WHEREAS, under the terms of the indenture governing the EBC Notes (the
"EBC Indenture"), EBC agreed to cause the Company to make an offer to exchange
(the "EDBS Exchange Offer") all of the outstanding EBC Notes for a new class of
notes issued by the Company, as soon as practical following the first date (as
reflected in the Company's most recent quarterly or annual financial statements)
on which the Company is permitted to incur Indebtedness in an amount equal to
the outstanding principal balance of the EBC Notes under the Indebtedness to
Cash Flow Ratio test contained in Section 4.09 of the Indenture and such
incurrence of Indebtedness would not otherwise cause any breach or violation of,
or result in a default under, the terms of the Indenture;
WHEREAS, the definition of "Indebtedness" in the Indenture includes any
item that would appear as a liability upon the Company's balance sheet in
accordance with GAAP except any balance that constitutes an accrued expense or
trade payable;
WHEREAS, under GAAP, the requirement that the Company may have to make
the EDBS Exchange Offer could result in an accounting treatment requiring that
some or all of Indebtedness represented by the EBC Notes be recorded on the
Company's books prior to the completion of the EDBS Exchange Offer;
WHEREAS, the Company desires to amend the Indenture to provide that the
recording of some or all of the Indebtedness represented by the EBC Notes on the
Company's balance sheet as a result of the application of GAAP and related rules
prior to the completion of the EDBS Exchange Offer would not be deemed to
constitute an incurrence of Indebtedness for purposes of Section 4.09 of the
Indenture;
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WHEREAS, Section 9.02 of the Indenture provides that the Indenture may
be amended with the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes;
WHEREAS, the Company has received the valid written consents of the
Holders of more than a majority in aggregate principal amount of the outstanding
Notes consenting to the substance of the amendment set forth in this First
Supplemental Indenture;
WHEREAS, the Company and the Guarantors desire and have requested that
the Trustee, pursuant to Section 9.06 of the Indenture, join with them in
entering into this First Supplemental Indenture for the purpose amending the
Indenture in certain respects as described herein;
WHEREAS, (i) the Company has delivered to the Trustee an Officers'
Certificate relating to this First Supplemental Indenture as contemplated by
Section 11.04(a) of the Indenture, and (ii) an Opinion of Counsel relating to
this First Supplemental Indenture as contemplated by Section 11.04(b) of the
Indenture, and (iii) has satisfied all conditions and requirements Under the
Indenture to enable the Company, Guarantors and the Trustee to enter into this
First Supplemental Indenture.
NOW, THEREFORE, in consideration of the above premises, the Company,
Guarantors and Trustee covenant and agree, for the benefit of the others and for
the equal and ratable benefit of the Holders of the Notes, as follows:
ARTICLE I
AMENDMENTS TO INDENTURE
1.1. Additions to Section 1.01 of the Indenture. The following
definitions are hereby added to Section 1.01 of the Indenture:
"EBC Notes" means the 10 3/8% Senior Notes due 2007 issued by EchoStar
Broadband Corporation.
"EDBS Exchange Offer" means the offer by the Company to exchange the
EBC Notes for a new series of notes to be issued by the Company; which
notes will be substantially identical to the EBC Notes except, among
other things: (i) the Company shall be the issuer thereof instead of
EchoStar Broadband Corporation; (ii) subject to certain conditions, the
Guarantors will also guarantee such new notes; and (iii) such other
changes as may be required to assure that the execution and delivery of
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such notes and the incurrence of such Indebtedness do not breach,
violate or cause a default under the Notes and this Indenture.
1.2. Amendments to Section 1.01 of the Indenture. The definition of
"Indebtedness" contained in Section 1.01 of the Indenture is hereby amended by
adding the following sentence at the end of the definition:
"Notwithstanding the foregoing, the recording of some or all of the
Indebtedness represented by the EBC Notes on the Company's balance
sheet prior to the completion of the EDBS Exchange Offer in accordance
with GAAP and related rules and regulations promulgated by the SEC
(including "push down" accounting), shall not be deemed to constitute
Indebtedness for purposes of Section 4.09 of the Indenture or included
as Indebtedness for purposes of calculating the Indebtedness to Cash
Flow Ratio"
1.3. Notation on Notes. The form of Note attached as Exhibit A to the
Indenture is deemed modified as appropriate to reflect the amendments contained
in this First Supplemental Indenture. Any notes authenticated and delivered
after the close of business on the date of this First Supplemental Indenture in
substitution for Notes then outstanding and all Notes presented or delivered to
the Trustee on or after the date for such purpose shall, pursuant to Section
9.05 of the Indenture, be stamped, imprinted or otherwise legended by the
Trustee with the following notation:
"Effective October ___, 2000 the Company, the Guarantors and the
Trustee entered into a First Supplemental Indenture providing that,
among other things, the recording of some or all of the Indebtedness
represented by certain notes issued by EchoStar Broadband Corporation
on the Company's balance sheet prior to the completion of the exchange
of such notes for new notes issued by the Company shall not be deemed
to constitute Indebtedness for purposes of Section 4.09 of the
Indenture or included as Indebtedness for purposes of calculating the
Indebtedness to Cash Flow Ratio. Reference is hereby made to the First
Supplemental Indenture, copies of which are on file with the Trustee,
for a description of the foregoing amendments."
ARTICLE II
NOTIFICATION TO HOLDERS
The Company shall notify the Holders in accordance with Section 9.02 of
the Indenture of the execution of this First Supplemental Indenture. Any failure
of the Company
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to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of this First Supplemental Indenture.
ARTICLE III
MISCELLANEOUS PROVISIONS
3.1. Terms Defined. For all purposes of this First Supplemental
Indenture, except as otherwise defined herein, capitalized terms used in this
First Supplemental Indenture shall have the meanings ascribed to such terms in
the Indenture.
3.2. Indenture. Except as amended hereby, the Indenture, the Guarantees
and the Notes are in all respects ratified and confirmed and all their terms
shall remain in full force and effect. From and after the effectiveness of this
First Supplemental Indenture, any reference to the Indenture, the Guarantees or
the Notes shall mean the Indenture, the Guarantees or the Notes, as the case may
be, as so amended by this First Supplemental Indenture. If there is any conflict
between the provisions of this First Supplemental Indenture and the Indenture,
the provisions of this First Supplemental Indenture shall control.
3.3. Governing Law. The internal laws of the State of New York shall
govern this First Supplemental Indenture, without regard to the principles of
the conflicts of law thereof.
3.4. Successors. All agreements of the Company and the Guarantors in
this First Supplemental Indenture shall bind their successors and assigns. This
First Supplemental Indenture shall be binding upon each Holder of Notes and
their respective successors and assigns.
3.5. Multiple Counterparts. The parties may sign multiple counterparts
of this First Supplemental Indenture. Each signed counterpart shall be deemed an
original, but all of them together represent the same agreement.
3.6. Trustee Disclaimer. The Trustee accepts the amendment of the
Indenture effected by this First Supplemental Indenture and agrees to execute
the trust created by the Indenture as hereby amended, but only upon the terms
and conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee, which
terms and provisions shall in like manner define and limit its liabilities and
responsibilities in the performance of the trust created by the Indenture as
hereby amended. Without limiting the generality of the foregoing, the Trustee
shall not be responsible in any manner whatsoever for or with respect to any of
the recitals or statements contained herein, all of which recitals or statements
are made solely by the
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Company, or for or with respect to (i) the validity, efficacy or sufficiency of
this First Supplemental Indenture or any of the terms or provisions hereof, (ii)
the proper authorization hereof by the Company by corporate action or otherwise,
(iii) the due execution hereof by the Company or (iv) the consequences (direct
or indirect and whether deliberate or inadvertent) of any amendment herein
provided for, and the Trustee makes no representation with respect to any such
matters.
3.7. Separability Clause. In case any clause of this First Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the date first written
above.
ECHOSTAR DBS CORPORATION
By: /s/ David K. Moskowitz
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Name: David K. Moskowitz
Title: Senior Vice President,
General Counsel and Secretary
ECHOSTAR SATELLITE CORPORATION
By: /s/ David K. Moskowitz
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Name: David K. Moskowitz
Title: Senior Vice President,
General Counsel and Secretary
ECHOSTAR TECHNOLOGIES
CORPORATION
By: /s/ David K. Moskowitz
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Name: David K. Moskowitz
Title: Senior Vice President,
General Counsel and Secretary
ECHO ACCEPTANCE CORPORATION
By: /s/ David K. Moskowitz
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Name: David K. Moskowitz
Title: Senior Vice President,
General Counsel and Secretary
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ECHOSPHERE CORPORATION
By: /s/ David K. Moskowitz
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Name: David K. Moskowitz
Title: Senior Vice President,
General Counsel and Secretary
DISH SERVICES NETWORK CORPORATION
By: /s/ David K. Moskowitz
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Name: David K. Moskowitz
Title: Senior Vice President,
General Counsel and Secretary
ECHOSTAR INTERNATIONAL
CORPORATION
By: /s/ David K. Moskowitz
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Name: David K. Moskowitz
Title: Senior Vice President,
General Counsel and Secretary
SATELLITE SOURCE, INC.
By: /s/ David K. Moskowitz
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Name: David K. Moskowitz
Title: Senior Vice President,
General Counsel and Secretary
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HOUSTON TRACKER SYSTEMS, INC.
By: /s/ David K. Moskowitz
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Name: David K. Moskowitz
Title: Senior Vice President,
General Counsel and Secretary
ECHOSTAR NORTH AMERICA
CORPORATION
By: /s/ David K. Moskowitz
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Name: David K. Moskowitz
Title: Senior Vice President,
General Counsel and Secretary
SKY VISTA CORPORATION
By: /s/ David K. Moskowitz
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Name: David K. Moskowitz
Title: Senior Vice President,
General Counsel and Secretary
ECHOSTAR INDONESIA, INC.
By: /s/ David K. Moskowitz
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Name: David K. Moskowitz
Title: Senior Vice President,
General Counsel and Secretary
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ECHOSTAR SPACE CORPORATION
By: /s/ David K. Moskowitz
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Name: David K. Moskowitz
Title: Senior Vice President,
General Counsel and Secretary
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Richard Prokash
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Name: Richard Prokash
Title: Vice President